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Constitution of India
Article 370 of the Indian constitution is a law that grants special autonomous status to Jammu and Kashmir. The article is drafted in Part XXI of the Constitution, which relates to Temporary, Transitional and Special Provisions.
370. Temporary provisions with respect to the State of Jammu and Kashmir.
(1) Notwithstanding anything contained in this Constitution,—
- (a) the provisions of article 238 shall not apply now in relation to the state of Jammu and Kashmir;[a]
- (b) the power of Parliament to make laws for the said state shall be limited to—
- (i) those matters in the Union List and the Concurrent List which, in consultation with the Government of the State, are declared by the President to correspond to matters specified in the Instrument of Accession governing the accession of the State to the Dominion of India as the matters with respect to which the Dominion Legislature may make laws for that State; and
- (ii) such other matters in the said Lists as, with the concurrence of the Government of the State, the President may by order specify.
Explanation: For the purpose of this article, the Government of the State means the person for the time being recognized by the President on the recommendation of the Legislative Assembly of the State as the Sadr-i-Riyasat (now Governor) of Jammu and Kashmir, acting on the advice of the Council of Ministers of the State for the time being in office.[b]
- (c) the provisions of article 1 and of this article shall apply in relation to that State;
- (d) such of the other provisions of this Constitution shall apply in relation to that State subject to such exceptions and modifications as the President may by order specify:
- Provided that no such order which relates to the matters specified in the Instrument of Accession of the State referred to in paragraph (i) of sub-clause (b) shall be issued except in consultation with the Government of the State:
- Provided further that no such order which relates to matters other than those referred to in the last preceding proviso shall be issued except with the concurrence of that Government.
(2) If the concurrence of the Government of the State referred to in paragraph (ii) of sub-clause (b) of clause (1) or in the second proviso to sub-clause (d) of that clause be given before the Constituent Assembly for the purpose of framing the Constitution of the State is convened, it shall be placed before such Assembly for such decision as it may take thereon.
(3) Notwithstanding anything in the foregoing provisions of this article, the President may, by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify:
Provided that the recommendation of the Constituent Assembly of the State referred to in clause (2) shall be necessary before the President issues such a notification.
This article specifies that except for Defence, Foreign Affairs, Communications and ancillary matters (matters specified in the instrument of accession) the Indian Parliament needs the State Government's concurrence for applying all other laws. Thus the state's residents lived under a separate set of laws, including those related to citizenship, ownership of property, and fundamental rights, as compared to other Indians.
Similar protections for unique status exist in tribal areas of India including those in Himachal Pradesh, Arunachal Pradesh, Andaman & Nicobar Islands and Nagaland. However, it is only for the state of Jammu and Kashmir that the accession of the state to India is still a matter of dispute between India and Pakistan still on the agenda of the UN Security Council and where the Government of India vide 1974 Indira-Sheikh accord committed itself to keeping the relationship between the Union and Jammu and Kashmir State within the ambit of this article .
The 1974 Indira-Sheikh accord between Kashmiri politician Sheikh Abdullah and then Prime Minister Indira Gandhi stated, "The State of Jammu and Kashmir which is a constituent unit of the Union of India, shall, in its relation with the Union, continue to be governed by Article 370 of the Constitution of India".
In notifications issued as far back as 1927 and 1932, the state created various categories of residents – with some being called permanent residents (PRs) with special rights. Though the law did not discriminate between female and male PRs, an administrative rule made it clear that women could remain PRs only till marriage. After that they had to seek a fresh right to remain PRs. And if a woman married someone who wasn’t a Kashmiri PR, she automatically lost her own PR status. In 2004, the state high court, in the case of State of J&K vs Sheela Sawhney, declared that there was no provision in the existing law dealing with the status of a female PR who married a non-resident. The provision of women losing their PR status after marrying outside the state, therefore, did not have any legal basis. This decision was historic because it corrected an administrative anomaly and brought relief to women who married outside the state. A People's Democratic Party government, led by Mehbooba Mufti, passed a law to overturn the court judgment by introducing a Bill styled “Permanent Residents (Disqualification) Bill, 2004’. This was not Mufti’s solo effort. Omar Abdullah’s party, the National Conference, backed this Bill and got it passed in the assembly. But it did not ultimately see the light of day for various reasons.
Sheikh Mohammad Abdullah, the state's 'Prime Minister' and leader of the Muslims in the Valley, found the inclusion of Article 370 in the 'Temporary and Transitional Provisions' of the Constitution's Part XXI unsettling. He wanted 'iron clad guarantees of autonomy'. Suspecting that the state's special status might be lost, Abdullah advocated independence from India, causing New Delhi to dismiss his government in 1953, and place him under preventive detention.
Some argue that the President may, by public notification under article 370(3), declare that Article 370 shall cease to be operative and no recommendation of the Constituent Assembly is needed as it does not exist any longer. Others say it can be amended by an amendment Act under Article 368 of the Constitution and the amendment extended under Article 370(1). Art. 147 of the Constitution of Jammu and Kashmir states no Bill or amendment seeking to make any change in the provisions of the constitution of India as applicable in relation to the State; shall be introduced or moved in either house of the Legislature. As per Art. 5 of the Constitution of Jammu and Kashmir the executive and legislative power of the State extends to all matters except those with respect to which Parliament has power to make laws for the State under the provisions of the Constitution of India as applicable in relation to this state.
In 1949, then Prime Minister Jawaharlal Nehru directed Sheikh Abdullah to consult then Law Minister B. R. Ambedkar to prepare the draft of a suitable article to be included in the Constitution. Ambedkar was against Article 370 and it was included against his wishes. Balraj Madhok reportedly said, Dr. Ambedkar had clearly told Sheikh Abdullah, "You wish India should protect your borders, she should build roads in your area, she should supply you food grains, and Kashmir should get equal status as India. But Government of India should have only limited powers and Indian people should have no rights in Kashmir. To give consent to this proposal, would be a treacherous thing against the interests of India and I, as the Law Minister of India, will never do it." Then Abdullah went to Nehru, who directed him to N. Gopalaswami Ayyangar, who approached Sardar Patel asking him to do something as it was a matter of prestige for Nehru, who had promised Abdullah accordingly. Patel got it passed when Nehru was on a foreign tour. On the day this article came up for discussion, Dr. Ambedkar did not reply to questions on it though he did participate on other articles. All arguments were done by Gopalaswami Ayyangar. Ambedkar, the principal drafter of the Constitution, refused to draft Article 370, and this was eventually done by Ayyangar.
Constitution of Jammu And Kashmir
Article 1 of the Constitution of Jammu and Kashmir states that the State of Jammu and Kashmir is and shall be an integral part of the Union of India. Article 5 states that the executive and legislative power of the State does not extend to matters except those with respect to which Parliament has power to make laws for the State under the provisions of the Constitution of India. These provisions cannot be amended. The constitution was adopted and enacted on 17 November 1956.
Applicability of the Constitution of India to J&K
In exercise of the powers conferred by clause (1) of article 370 of the Constitution, the President, with the concurrence of the Government of the State of Jammu and Kashmir made The Constitution (Application to Jammu and Kashmir) Order, 1950 which came into force on 26 Jan 1950 and was later superseded by the Constitution (Application to Jammu and Kashmir) Order, 1954 which came into force on 14 May 1954.
Demands for abrogation
There has been demand by BJP and RSS for abrogation of Article 370. Congress leader Karan Singh, son of Maharaja Hari Singh, has also opined that an integral review of Article 370 is overdue and needs cooperation not confrontation.
- 1974 Indira–Sheikh accord
- Article 356
- PART XXI of Indian constitution
- Instrument of Accession (Jammu and Kashmir)
- Article 370 text from wikisource
- Article 238 was repealed by the 7th Amendment in 1956.
- The explanation originally read, "For the purpose of this article, the Government of the State means the person for the time being recognised by the President as the Maharaja of Jammu and Kashmir acting on the advice of the Council of Ministers for the time being in office under the Maharaja's Proclamation dated the fifth day of March, 1948;" This was changed via Ministry of Law order No. C.O. dated 15th November 1952 stating, "In exercise of the powers conferred by Article 370 the President, on the recommendation of the Constituent Assembly of the State of Jammu and Kashmir, declared that as from the 17th Day of November, 1952, the said Article 370 shall be operative with the modification that for the Explanation in Cl. (1) thereof, the following explanation is substituted namely...[Explanation follows]"
- "The Constitution of India (1949)". Lok Sabha Secretariat. pp. 1122–1123. Retrieved 2 May 2014.
- Rekha Chowdhary (23 April 2010). "Kashmir vs Women". Retrieved 2 December 2012.
- Austin, Granville (1999). Working a Democratic Constitution - A History of the Indian Experience. New Delhi: Oxford University Press. pp. 151–152. ISBN 0-19-565610-5.
- Jamanadas, Dr. K. "Kashmir Problem From Ambedkarite Perspective". ambedkar.org. Retrieved 17 September 2013.
- Sehgal, Narender (1994). "Chapter 26: Article 370". Converted Kashmir: Memorial of Mistakes. Delhi: Utpal Publications. Retrieved 17 September 2013.
- Tilak. "Why Ambedkar refused to draft Article 370". Indymedia India. Retrieved 17 September 2013.
- Integral review of Article 370 overdue, but needs cooperation not confrontation: Congress leader Karan Singh
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